Collecting biometric information from drivers without their permission could get motor carriers in trouble, at least in Illinois.

A recent Illinois appellate court ruling has the potential to increase liability under Illinois' Biometric Information Privacy Act, and that could lead to more class-action lawsuits against carriers operating in the state, warned the transportation attorneys at Scopelitis, Garvin, Light, Hanson & Feary in an email alert.

The BIPA law requires private entities that obtain biometric information (such as fingerprints, facial recognition scans, and voice recognition) to first inform the subject in writing that their information is being collected and stored, inform the subject of the specific purpose and term for collection and storage, and secure a written release from the subject.  

The court established that BIPA applies to every capture and use of a person’s fingerprint, hand scan and facial or voice recognition capture, not just when the company first obtains the information.

Biometric information is used to detect driver fatigue via in-cab cameras, to provide security locks on devices, to better manage a workforce, and other purposes. The use of these biometric scans is now commonplace across the transportation industry, according to the attorneys.

The ruling came after an Illinois truck driver filed a class action lawsuit against Maverick Transportation and Lytx, claiming the Drivecam dashcam illegally collects facial geometry data. The driver, Joshua Lewis, claimed the non-consensual data collection violates BIPA.

“Lewis seeks a declaration of Maverick Transportation LLC and Lytx Inc. in violation of BIPA, plus injunctive and other equitable relief, statutory damages of $5,000 for each violation of BIPA or $1,000 for each negligent violation, attorneys' fees and cost of suit,” the Madison-St. Clair Record, a local news outlet, reported.

Carriers with operations in Illinois need to take a close look at how they are using biometric data, including through facial recognition on in-cab cameras, said Brandon Wiseman, owner and president of Trucksafe Consulting, in an email response to HDT. “Ensure they supplement their existing driver policies with the required disclosures.”

“Absent a compliant BIPA policy, transportation companies using this technology could face thousands of dollars in damages for each scan,” wrote the Scopelitis attorneys.

Illinois is the only state that regulates the use and disclosure of biometric information whose statute includes a private right of action, according to the National Law Review. (A private right of action is when a private individual or entity, as opposed to the state, government or a public body, has the legal right to commence legal proceedings or file a lawsuit against another under the law.) Texas and Washington also have comprehensive laws governing biometric information. In other states, such as New York and Maryland, such legislation has failed to pass, according to the National Law Review.